The defendant in error, Seymour, sold to plaintiffs in error, Coverdill Buffington, the property described in the following instrument of writing, upon the terms therein specified:
"Know all men by these presents, that I, S.K. Seymour, of the above State and county, for and in consideration of the sum of five hundred dollars, in cash in hand paid to me by J. Coverdill and John B. Buffington, and the further sum of $4750 to be paid to me by them on or before ninety days after date, in evidence of which they have executed to me their joint and several promissory note of even date herewith for said sum, bearing eight per cent interest from said date, and stipulating for ten per cent attorney's fees, and payable at Columbus, Colorado County, Texas, have granted, sold, and conveyed, and by these presents do grant, sell, and convey unto the said Coverdill and the said Buffington, of said above State and county, the following described real and personal property, situated in said county, to wit: 1st. Lots one, two, three, and four in block three, of the town of Rock Island, according to the plan of said town. 2d. All my stock of lumber, sash, doors, and blinds, and all other articles and fixtures, belonging to the lumber business now carried on by me in my lumber yard located on the lots above mentioned and in the buildings thereon, except my stock of hardware and paints, the same being retained by me and conveyed hereby. To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said Coverdill and the said Buffington, their heirs and assigns forever. And I do hereby bind myself, my heirs and executors and administrators, to warrant and defend all and singular the said premises unto the said Coverdill and the said Buffington, their heirs and assigns, against every person whomsoever lawfully claiming the same or any part thereof. But it is expressly agreed and stipulated as follows: 1st. That the vendor's lien is retained against the real estate hereby conveyed, consisting of the above described lots and appurtenances, to secure the payment of said note according to its tenor and effect. 2d. The title to the lumber, sash, doors, and blinds and other articles or fixtures belonging to said lumber business, and all personal property of whatever kind herein *Page 6 mentioned, shall not vest in the said Coverdill and the said Buffington or either of them, but shall remain the property of the said Seymour until the above described note and all interest and attorney's fees are fully paid according to its face and tenor, effect and reading, when the title to the said property shall pass to the said Coverdill and the said Buffington. The said vendor's lien and the reservation of title being to secure the prompt payment of said note, neither of which is waived by taking the other. 3d. It is agreed that Coverdill and Buffington shall carry on said lumber business at Rock Island, selling for cash, and at the end of each day they are to turn over the proceeds of such sales to the said Seymour or his agent, authorized by him to receive the same, to be credited on said note, except that it is agreed that a part of said cash proceeds may be used by said Coverdill and Buffington, to purchase from said Seymour articles, lumber, etc., for the purpose of replenishing said stock, at the option of said Seymour. It is also agreed that with the consent of the said Seymour or his agent, sales may be made on a credit, to be paid on or before the maturity of the note above mentioned; the money, when collected, to be paid to said Seymour or his agent as aforesaid, to be credited on said note. It is also agreed that for the purpose of receiving said daily sales, and of protecting his interest in the premises, the said Seymour or his agent shall have access to the yards, buildings, etc., and shall be afforded all the opportunities necessary for that purpose by the said Coverdill and Buffington. It is agreed that certain sash, doors, and lumber ordered by said Seymour to be shipped to him at Rock Island shall be embraced in and form a part of the stock described as being situated on the lots conveyed hereby, and to become the property of the said Coverdill and Buffington upon the payment of said note, interest, etc., but the title to remain in the said Seymour until such payment. Witness my hand this 8th day of August, A.D. 1898. (Signed) S.K. Seymour."
A note for the purchase money was executed, as recited, and as further security for it, Coverdill Buffington executed to Seymour a mortgage on a stock of lumber in another lumber yard owned by them, containing the same stipulation concerning sales upon credit and application of proceeds of sales as those in the foregoing instrument.
This action was begun by an application made by Seymour, before the maturity of the note, to the district judge for the appointment of a receiver for both stocks of lumber upon the ground, substantially, that the defendants were violating the terms of the contract concerning credit sales and application of cash received and thereby dissipating the security. A receiver was appointed and took and held possession of the mortgaged property for some time, but was discharged pending the suit. Plaintiffs amended their pleadings after the maturity of the note.
Besides the balance alleged to be due upon the note after allowance of some small credits, the petition sought to recover a balance alleged to be due upon an account for the price of the sash, doors, and lumber *Page 7 mentioned in the last sentence of the instrument copied above. As to this claim, the petition made the following allegation: "And as additional security for the said note, the defendants agreed that certain cars of lumber, sash, and doors ordered by plaintiff to be shipped to him, plaintiff, at Rock Island, but which had not arrived, and which formed no part or parcel of said lumber, shingles, etc., on the lots above described, and which defendants agreed they would purchase from plaintiff upon its arrival at said town, should, for the purpose of security, be considered a part of the original stock and to pass to defendants therewith upon the payment of said note, as clearly appears from the stipulation with reference thereto in said contract, as follows, to wit: `It is agreed that certain sash, doors, and lumber ordered by said Seymour, and to be shipped to him at Rock Island, shall be embraced in and form a part of the stock described as being situated on the lots conveyed hereby and to become the property of said Coverdill and Buffington upon the payment of said note, interest, etc., but the title to remain in the said Seymour until such payment;' that it was understood between the parties that said cars of lumber, etc., were to be paid for in cash upon their arrival; that thereafter said cars of lumber, etc., arrived, and were inventoried and sold to defendants on respective days of their arrival and at prices below named, which prices were, at the time of such sale, agreed to by plaintiff and defendants, and whereby they became liable and promised, then and there, to pay plaintiff said sums of money therefor, to wit: August 20, 1898, one car load of shingles and moulding for $282.41; on August 27, 1898, one car load of sash and doors for $607.80; on August 31, 1898, one car load of lumber for $197.93, being a total of $1088.14; that defendants failed to pay for said lumber, etc., as agreed, but have only paid thereon the sum of $828.32, leaving a balance due by them to plaintiff thereon of $259.82."
The defendants excepted specially to this allegation on the ground, substantially, that it sought to vary the written contract by the terms of which the sash, doors, and lumber were conveyed in consideration of the cash payment and the note, and there were no allegations showing fraud or mistake in the drafting of such instrument, which exception was overruled. The defendants, by their pleadings, also denied that they were to pay for this property any sum besides those mentioned in the writing, and claimed that all payments made should be credited on the note, and sought, by plea in reconvention, to recover damages on the ground that the appointment of the receiver and the taking of the property from their possession was wrongfully obtained by plaintiff upon false allegations. To the claim for damages, also, the court sustained exceptions.
At the trial, the court admitted, over defendant's objection, parol evidence of an agreement concerning the sash, etc., such as that alleged, contemporaneous with the written contract, and that the defendants, at their request, were allowed to take them when they arrived without prepayment of the price. As to this there was a conflict of testimony, defendant's evidence tending to show that all the property mentioned *Page 8 in the writing was sold for the price therein mentioned. The jury found for the plaintiffs upon all the issues, and the judgment rendered on their verdict was affirmed by the Court of Civil Appeals.
1. It is plain that the petition does not seek a reformation of the written instrument upon the ground that, on account of fraud or mistake, it was so drawn as not to truly state the contract. The plaintiff relies on its terms as it stands, and his proposition is that it is to be construed as having the effect stated in the petition, or that, at least, it is not inconsistent with the existence of a separate agreement for the sale of the sash, etc., as alleged.
It is clear to our minds not only that the contract does not state the agreement contended for, but that it excludes it. By express terms it conveys the stock of lumber, situated as described, and then stipulates that the sash, etc., shall be embraced in and form a part of such stock. It states what the vendees are to do in consideration of the conveyance, i.e., to make the cash payment and give the note, and that all of such property is to become the property of the vendees upon payment of the note. The contention, in substance, is that the sash, etc., was not embraced in the stock conveyed by the writing and was not to pass upon the doing of the specified acts by the vendees, but that they were sold and passed only by a separate contract and in consideration of other things to be done by the vendees. A more direct conflict could hardly exist. If the purpose of the mention of the sash, etc., in the writing was simply that stated in the petition, it was not expressed, but a different one was.
It is true that sometimes parol evidence of a consideration different from or additional to that stated in a writing may be received without violating the rule that parol evidence will not be admitted to vary, contradict, or add to the written contracts of parties. It is unnecessary that we should restate the limits of this doctrine, so often explained. It certainly has no application to a case where the considerations for the acts or agreements of one party are the undertakings of the other and both are stated in the writing, which is the case here. If it is admissible for the vendor to show that the vendees were to pay more for the property than stated in the contract, it would be equally admissible for the vendees to show that the vendor was to deliver more lumber or other property for the price stated. This would wholly ignore the rule on the subject.
It is sometimes the case that the writing represents only a part of the contract, the other parts being expressed orally; and in such cases, those parts not reduced to writing which are consistent with the writing, may be shown. But this rule has no application, for the reason that the stipulations of the parties about the matter in controversy were put in writing and the effort is to show an inconsistent agreement. Belcher v. Mulhall,57 Tex. 17. Nor, for the same reason, can the agreement alleged by plaintiff be regarded as an independent sale or a contract collateral to that expressed in the writing. Thomas v. Hammond,47 Tex. 52. None of the authorities cited by counsel *Page 9 for defendant in error sustain their contention, and the case falls within none of the exceptions to the rule which excludes parol evidence to vary or contradict a written contract. The ruling of the court upon the special exception, the admission of parol evidence to show the agreement alleged by plaintiff, the charge of the court upon that point and the verdict and judgment, are all erroneous. The judgment must therefore be reversed, but, in order that plaintiff may amend his pleadings and show, if he can, fraud or mistake in the reduction of the contract to writing by which it was made to misrepresent the true agreement, the cause will be remanded.
The only other ground of error assigned in this court, the sustaining of plaintiff's special exceptions to defendant's several claims for damages, is not so presented by statement of the matter in the record affecting it as to require that we consider it as a ground for reviewing the judgment below; but, as the case is to go back for another trial, we have examined the plea and exceptions and are of opinion that the latter were properly sustained. We do no intend, however, to express any opinion upon the question whether or not a plaintiff who wrongfully procures the appointment of a receiver may be held liable for damages resulting to defendant from such appointment and the consequent taking of his property. That question is not presented, since none of the items claimed as actual damages could be recovered of plaintiff under any view that might be taken of it. Such items consist either of loss resulting from the acts of the receiver after his appointment, or of credit, or of speculative profits. The sums alleged to have been paid by defendants can be allowed as payments, if defendants should be found entitled to them, and hence are not to be treated as damages. So the costs of suit and of the receivership may be properly adjudged by the court without allowing a recovery of them by defendants as damages.
ON MOTION FOR REHEARING. Opinion Delivered June 14, 1900.